Power Shift: Hopeful Signs in China’s Legal Reform Plan

Judicial reforms being undertaken in China could, in theory, curtail a long-standing the problem with the country’s legal system: the ability of local government to conceal illegal activities through their control over local courts.

The Central Leading Group for Judicial Reform of the Chinese Communist Party announced the reform measures last month and an overview of a new five-year plan issued by the Supreme People’s Court on Wednesday signals a serious intention to implement them.

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The most notable reform would transfer to provincial governments the power over finances and personnel in basic courts, now held by local governments and People’s Congresses. The proposed reforms will begin as pilot projects in six areas that differ widely (Shanghai, Guangdong, Jilin, Hubei, Hainan and Qinghai).

Nationwide reform will have to wait pending “successful completion and review of the pilots.” This is consistent with a long Maoist tradition of trying out governance innovations locally before they are extended nationwide.

According to Chinese legal scholars with knowledge of the reform plans, the pilots would address the administration of the courts in different ways. Senior judges would no longer decide the salaries and promotion of lower-level judges. The accountability system that is now used to evaluate lower level judges, based heavily on the number of cases that are remanded or reversed, would be changed.

The reforms would also change the current practice of separating trial from decision. In many cases, a judicial panel or a single judge conducts trials and reaches decisions that are not final until they are approved within the same court at a higher level. Chinese legal scholars have long urged that the Supreme People’s Court should limit this procedure and instead “fully respect decisions made independently by trial judges and the collegiate bench” (pdf).

Other aspects of the courts are presently only listed as matters to be considered: funding of courts at the provincial level, postponing the retirement age for outstanding judges and procurators, and professionalizing the police.

The proposed reforms aim to differentiate judges and procurators from other government bureaucracies by using special methods of selection and. Removing the power of local governments to select these officials could help restrain local officials’ abuses of power if they are challenged by citizens in the courts over issues such as illegal land seizures or concealment of violations of product safety and environmental laws.

Another key proposal is improvement of the “responsibility system” that would clarify the rights and responsibilities of judges and prosecutors.

According the South China Morning Post, cases will be handled only by presiding judges and prosecutors, without the participation of local Party political-legal “adjudication committees” that coordinate relations among public security, courts, and procuracy. That would mean giving greater finality to some decisions of procurators and judges rather than requiring higher-level approval

It does not mean, however, that courts will be insulated from pressures from those higher-level officials on their decision-making. Importantly, nothing in these reforms is aimed at diminishing Communist Party control over outcomes in the courts.

China Law Translate notes that despite the focus on protecting courts from local protectionism and increasing their professionalization, the references to Party control and “political character” suggest limits on independence.

A key example is the provincial committees that will be set up to select judges and prosecutors “from the perspective of professionalism.” According to The committees will include experienced judges and prosecutors, as well as lawyers, legal scholars and community representatives, but also by officials responsible for maintaining Party discipline and reviewing “political quality, integrity and self-discipline.”

It remains to be seen how these proposed reforms are put into practice, and whether the judiciary can become more committed to greater independence. Some clarity on those questions is likely to come once the Supreme People’s Court releases the full text of its five-year plan, which will contain more detail than is available at the moment.

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